Citation Nr: 0319062
Decision Date: 08/05/03 Archive Date: 08/13/03
DOCKET NO. 96-24 897 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to an effective date earlier than November 1,
1997, for the award of a total disability rating based upon
individual unemployability due to a service-connected
disability.
REPRESENTATION
Appellant represented by: James C. McKay, Attorney
ATTORNEY FOR THE BOARD
K. Osborne, Counsel
INTRODUCTION
The appellant served on active duty from March 1968 to
February 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1998 rating decision by the RO
which granted a total disability rating based on individual
unemployability (TDIU), effective from November 1, 1997. The
veteran appeals for an effective date earlier than November
1, 1997 for the assignment of the TDIU rating.
In a July 2000 decision, the Board denied the claim for an
effective date prior to November 1, 1997, for an award of a
TDIU rating. The veteran then appealed to the United States
Court of Appeals for Veterans Claims (Court). In April 1998,
the VA Secretary filed a motion with the Court, requesting
that the Board decision be vacated and the case remanded for
consideration of the Veterans Claims Assistance Act of 2000,
Pub.L No. 106-475, 114 Stat. 2096 (November 9, 2000). The
appellant did not oppose the Secretary's motion. By an April
2001 order, the Court granted the motion, and the case was
thereafter returned to the Board.
By a decision dated in January 2002, the Board again denied
the claim for an effective date prior to November 1, 1997,
for an award of a TDIU rating. The veteran then appealed to
the United States Court of Appeals for Veterans Claims
(Court). In November 2002, the parties (the appellant and
the Secretary of VA), filed a joint motion for remand and
stay of proceedings, finding that the Board's reasons and
bases for its decision was inadequate. By a December 2002
order, the Court granted the motion, and the case was
thereafter returned to the Board.
FINDINGS OF FACT
1. The evidence of record demonstrates that the appellant
was engaged in substantial gainful employment from January
1995 to August 1995 at a Lincoln Mercury dealership, from
August 1995 to April 1996 at the Casey Luna dealership, and
from April 1996 to November 1997 at Perfection Honda.
2. From January 1995 to November 1997, the veteran's income
exceeded the poverty threshold for one person.
3. The veteran's employment from January 1995 to November
1997 is not considered marginal employment.
4. The evidence of record demonstrates that the earliest
date on which it is factually ascertainable that the
appellant was unable to secure or follow a substantially
gainful occupation due to his service-connected PTSD (his
only service-connected disability) is November 1, 1997.
CONCLUSION OF LAW
The requirements for an effective date earlier than November
1, 1997, for the award of a total disability rating based on
individual unemployability due to a service-connected
disability are not met. 38 U.S.C.A. §§ 5107, 5110 (West 1991
& Supp. 2002); 38 C.F.R. §§ 3.400, 4.16 (1996 & 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
In November 1992, the veteran filed a claim of service
connection for PTSD.
A correspondence from M.L.S., M.S.N., Satellite Coordinator
at the Vet Center in Santa Fe, New Mexico, dated in April
1993, shows that the appellant had received counseling at the
Vet Center since November 1992. Ms. S. stated that the
appellant had been diagnosed with PTSD and had been receiving
both group and individual treatment on an as needed basis.
Ms. S. also submitted the appellant's intake assessment,
dated in November 1992. During the intake assessment, the
veteran reported that he was engaged in combat while in
Vietnam. According to the veteran, his current PTSD symptoms
included sleep disturbance, flashbacks, intrusive thoughts,
survivor's guilt, difficulty concentrating, and an
exaggerated startled response. The veteran reported that he
was married to his second wife and that they had one child.
He revealed that since his return from Vietnam, he had had
difficulty keeping jobs due to "conflicts with [his]
bosses." The appellant stated that he had held 10 to 15
jobs since his discharge, and that he worked best by himself.
According to the veteran, for the past several years, he had
been self-employed performing odd jobs in construction and
carpentry.
A Psychological Testing Report, dated in October 1993, shows
the veteran underwent a psychiatric evaluation at the request
of his Vet counselor. According to the Report, the veteran
stated that following his return from Vietnam, he became a
loner and was socially isolated. The veteran indicated that
at present, he had extreme problems with his temper. He
revealed that he had a tremendous amount of anger that was
elicited by even small things. According to the veteran, he
had nightmares about his Vietnam experience and many of his
nightmares had combat themes. The veteran stated that he
would go into the forest around his house all of the time,
but that he would never spend the night there because of his
Vietnam memories. He noted that he would find himself in the
forest hiding from hikers, with his heart pounding as though
he was still in Vietnam. The appellant noted that he had
been attending group counseling at the Vet Center and that as
a result, he was extending himself more in social situations.
He reported that he was married to his second wife and that
he was self-employed as a carpenter and remodeler. The
veteran revealed that he liked to work without a crew because
of his severe problems with getting along with people.
Upon mental status evaluation, it was noted that the
appellant took the MMPI-2 test as part of the evaluation.
The examining psychologist stated that the appellant's
testing results confirmed his PTSD diagnosis. According to
the examiner, the testing also reflected that the appellant
was an angry, alienated man who was paranoid, hypersensitive,
and hyper-vigilant. The testing further showed that the
veteran was socially quite, introverted and withdrawn, and
such findings were consistent with the isolated lifestyle he
had described. The veteran's highest score was in the area
of anger. The examiner noted that there were many occasions
when the above problems interfered with the veteran's ability
to work in an average job situation. The diagnoses included
the following: (Axis I) PTSD, chronic, severe, secondary to
Vietnam, (Axis IV) severity of psychosocial stressors-severe,
and (Axis V) global assessment of functioning (GAF) score of
50.
In December 1993, the appellant underwent a VA psychiatric
evaluation. At that time, he stated that after his
discharge, he attempted to continue his schooling, but was
unsuccessful because he had trouble concentrating and getting
along with the other students. The appellant indicated that
he also had problems with anyone in a position of authority,
thereby causing problems in his vocational efforts. He noted
that he was able to work in carpentry and did best when he
could work alone. According to the veteran, he had difficulty
keeping jobs because of his problems with authority. The
veteran reported that at present, he had difficulty
concentrating and also had considerable problems with
depression, crying, and with any situation in which he was
around other people. He stated that he could not use public
transportation and found that any time he was around other
people, he felt quite anxious and had to get out of that
situation. According to the veteran, he lost his temper
easily and was prone to getting into arguments. The
appellant noted that in earlier times, he would get into
fights.
In the veteran's December 1993 VA evaluation, he indicated
that his sleep was sporadic and intermittent, and that he
would wake up early so that he could check the house to make
sure the situation was secure. He reported that he was
extremely sensitive to noise and any unusual noise would wake
him up. He stated that he had weapons in his home, including
one by his bed. Although the veteran was not suicidal, he
did not feel that life was worth living. The veteran
indicated that he cried on a daily basis and thought of
friends who had died in Vietnam. He noted that he was overly
sensitive to routine daily situations and was prone to lose
his temper. According to the veteran, there was a recent
occasion when he lost his temper with his representative and
there was some physical exchange.
Upon mental status evaluation, the examiner stated that the
veteran did not report any hallucinations and there was no
evidence that he suffered from any delusions. The examiner
indicated that the veteran was involved in a considerable
amount of combat and currently had difficulty falling and
staying asleep, was irritable and hyper-vigilant at night,
and had outbursts of anger, difficulty concentrating, and an
exaggerated startle response. According to the examiner, the
veteran had constant daily rumination over the events of
Vietnam and had, in the past, engaged in efforts to avoid
activities and situations that recalled recollections of his
Vietnam experience. The veteran had been quite isolated and
had markedly diminished interest in social activities, to the
point where it was significantly interfering with his
marriage. The diagnoses included the following: (Axis I)
PTSD, chronic, with significant depressive features, (Axis
IV) stressors, extreme, relating to his military combat
experience, and (Axis V) highest level of function appeared
to have been, in the past year, somewhere around the 50
percent range.
In a January 1994 rating action, the RO granted the
appellant's claim of entitlement to service connection for
PTSD. At that time, the RO evaluated the appellant's
service-connected PTSD as 30 percent disabling under
Diagnostic Code 9411, effective from November 4, 1992.
A VA Discharge Summary shows that the appellant was
hospitalized from October 25, 1994 to January 19, 1995. Upon
admission, it was noted that the veteran had been struggling
with his PTSD and that his family had urged him to seek help.
It was further noted that the veteran was employed part-time
and that his civilian occupation was that of a carpenter. He
was diagnosed with the following: (Axis I) PTSD, (Axis IV)
catastrophic, exposure to war, and (Axis V) GAF score of 40.
According to the Summary, the appellant stated that excessive
anger and trouble getting along with people were some of his
major problems. He indicated that he had had a few violent
outbursts or violent episodes in the past, such as when he
slapped his wife's boss last year over an argument.
According to the veteran, he also had nightmares and
intrusive recollections of his Vietnam combat situations.
The veteran noted that he used to wake up three to four times
a night, but that he currently slept somewhat better because
he was taking medication. He reported that he had occasional
flashbacks and extreme sensitivity to sounds like
helicopters. According to the veteran, his anxiety and
hyperarousal had also been pronounced. The Summary reflects
that during the veteran's hospitalization, he attended all
treatment activities with enthusiasm. The veteran also
complained of depression and increased PTSD symptoms during
the program. Upon his discharge, it was noted that the
appellant was deemed to be unemployable.
In a February 1995 rating action, the RO granted the veteran
a temporary total (100 percent) rating under 38 C.F.R.
§ 4.29, effective October 25, 1994, for the appellant's
period of hospitalization from October 25, 1994 to January
19, 1995. The RO further indicated that from February 1,
1995, the veteran's permanent 30 percent disabling rating
under Diagnostic Code 9411 would be reinstated. In addition,
the RO denied the inferred issue of entitlement to a total
disability rating based on individual unemployability due to
the appellant's service-connected PTSD. The RO stated that
although the recent VA Discharge Summary reflected that the
veteran was "deemed unemployable," the evidence of record
showed that the veteran was working part-time as a carpenter.
A medical statement from J.M.C., M.D. Director of the PTSD
Program at the VA Medical Center (VAMC) in Albuquerque, dated
in October 1994, is of record. In this statement, Dr. C.
stated that the veteran was diagnosed with PTSD. Dr. C.
indicated that from June 20, 1994 to August 5, 1994, the
veteran had participated in a research project for the
treatment of PTSD with Fluvoxamine, a study drug.
In March 1997, a VA social and industrial survey was
conducted. At that time, the veteran stated that he was
divorced from his second wife since 1995 and currently lived
alone. The veteran reported that he had one son and that he
was in contact with him. He revealed that following his
discharge, he attended collage and worked at Avis Rent-A-Car.
The veteran indicated that from 1971 to 1979, he worked at
the Fremont Hotel, first as a bellboy and then as a doorman.
According to the veteran, from 1979 to 1993, he was self-
employed as a contractor. He reported that in April 1995, he
moved into car sales and worked at Rich Ford for
approximately six months. The appellant stated that he then
worked for Albuquerque Lincoln Mercury for approximately
three months, and that he quit because he could not get along
with the manager. He then obtained a job with Casey Luna Car
Sales where he worked for six months and quit once again
because he could not get along with management. According to
the veteran, since March 1996, he had been working at
Perfection Honda. The examiner noted that he had contacted
the veteran's current employer, Mr. S., and that according to
Mr. S., the veteran avoided authority figures and he only
communicated when it was necessary. Mr. S. indicated that
the veteran was guarded and did not let anyone get close to
him. According to Mr. S., the veteran was a very intense
person, but was a good employee and a good person.
In the appellant's March 1997 VA social and industrial
survey, in regards to an assessment, the examiner stated that
during the interview, the appellant was very intense and his
responses were short and direct. The examiner indicated that
the veteran presented himself as a person who needed to be in
control of the interaction within the relationship.
According to the examiner, the appellant was very isolated.
The examiner also noted that the appellant's strength was his
intelligence, and; that if the appellant has a goal, he could
stay focused on that goal.
In March 1997, the appellant underwent a VA psychiatric
evaluation. At that time, he stated that he had problems
relating to people. The appellant indicated that he took
Sertraline daily, and that he underwent PTSD counseling every
other month. He noted that he had to take medication in
order to fall asleep, and that he had nightmares almost
nightly. According to the appellant, the content of his
nightmares involved reliving actual experiences in Vietnam.
The appellant denied crying episodes, but he stated that he
had difficulty concentrating. He indicated that he avoided
media information about war or Vietnam, and that if he heard
helicopter blades, he had vivid unpleasant recollections of
experiences in Vietnam. According to the appellant, he had
an exaggerated startle response. The appellant reported that
he was currently working as a salesman at Perfection Honda
Used Cars, and that he worked 40 hours or more, averaging
approximately $800 dollars a month. He noted that he did not
like his job and that he it was hard to get along with the
people.
Upon mental status evaluation, the veteran's mood was
depressed and his affect was constricted. His thoughts
progressed in a logical and coherent manner. There was no
evidence of hallucinations, delusions, paranoid ideations, or
feelings of depersonalization. The appellant denied any
suicide attempts. He also acknowledged a history of violence
and noted that one week ago, he grabbed a stranger and
slammed him against the wall. Apparently, the stranger had
said something to him which he did not like. The appellant
noted that the worst violence he had participated in involved
fist fights. The diagnoses included the following: (Axis I)
PTSD, (Axis IV) psychosocial and environmental stressors,
traumatic wartime experiences during the Vietnam War, and
(Axis V) GAF score of 50, serious impairment, primarily in
social relations. The examiner stated that the appellant's
PTSD did not prevent him from working, as evidenced by the
fact that he was working at a job and was able to support
himself by that employment.
In February 1998, the veteran submitted a statement stating
that he was fired from his job on November 1, 1997. In
connection with his statement, he submitted a notice letter
from the New Mexico Department of Labor, Unemployment
Insurance Bureau. In this letter it was reported that the
veteran was laid off due to a lack of work.
In April 1998, the appellant submitted VA Form 21-8940,
Veteran's Application For Increased Compensation Based On
Unemployability. He stated that he had worked in sales at a
Lincoln Mercury dealership from January 1995 to August 1995.
He indicated that during that period of time, he worked for
50 hours per week and that he had lost two weeks of time due
to his service-connected PTSD. He noted that his highest
gross earnings per month were $1900 dollars. The appellant
also reported that he had worked in sales at the Casey Luna
dealership from August 1995 to April 1996. He revealed that
during that period of time, he worked 50 hours per week and
that he had lost two weeks of time due to his service-
connected PTSD. According to the appellant, his highest
gross earnings per month were $1750 dollars. The appellant
further noted that from April 1996 to November 1997, he
worked in sales at Perfection Honda. He stated that he
worked 50 hours per week, and that he had lost one month of
time due to his service-connected PTSD. According to the
appellant, his highest gross earnings per month were $3750
dollars. The appellant reported that he had last worked on
November 1, 1997.
The veteran's past employer, Perfection Honda, submitted a VA
form 21-4192, which was received in April 1998. The employer
reported that the veteran began working for the company on
July 18, 1996 and that his employment was ended on November
12, 1997. It was reported that the veteran earned $17, 230
over the last twelve months and that he worked 8 hours a day.
In April 1998, the appellant underwent a VA psychiatric
evaluation. At that time, he stated that in November 1997,
he was fired from his job at Perfection Honda. He indicated
that he was having serious interpersonal problems with co-
workers and customers and that a fight with a supervisor
precipitated his being fired from his job. According to the
appellant, his problems, including irritability and getting
violent toward co-workers and other people, prevented him
from maintaining employment. The appellant reported that he
had daily flashbacks and intrusive memories of his combat
experiences. He further complained of an inability to fall
and stay asleep, with nightly nightmares regarding his combat
experiences. The appellant also reported hyperarousal and
that he was extremely anxious and unable to concentrate,
remember things correctly, or perform any task at work.
According to the appellant, during the past six months, he
had mostly secluded himself in his apartment. He stated that
one week ago, he was in a grocery store when he became angry
at someone that "tested him," and he assaulted that person.
Upon mental status evaluation, the examiner noted that the
appellant seemed very distressed and anxious. According to
the examiner, the appellant was agitated, looked very
disheveled, had a very strong smell, was unkempt, and had a
constant fidgeting and hyperaroused look. The examiner
indicated that the appellant was wearing dark glasses and
avoided looking at him during the interview. The appellant
seemed angry at times, clinching his fists and being somewhat
intimidating at times. He complained that he was having
problems controlling his temper, becoming irritable and
hostile and sometimes violent towards people. The appellant
was alert and oriented times four. He denied suicidal and
homicidal ideations, and his speech was clear. The appellant
also denied any delusions or auditory or visual
hallucinations.
Following the mental status evaluation, the appellant was
diagnosed with the following: (Axis I) PTSD, chronic, severe,
(Axis IV) past history of combat experience; current lack of
financial and social support; unemployed, and (Axis V) GAF
score of 50. The examiner noted that the appellant seemed to
be clearly disabled from his PTSD symptoms. The examiner
stated that the appellant had not been able to hold a job
steadily since his return from combat, and that he had most
recently been unemployed for five months and had had multiple
attempts to go back to work without success. The main
problems at work seemed to be irritability, hostility, and an
inability to work with other people due to his intrusive
symptoms, as well as impulse control problems. The examiner
indicated that in summary, the appellant was unable to keep a
job, had no friends, and was unable to currently perform any
occupational activity.
In a July 1998 rating action, the RO increased the
appellant's schedular disability rating for his service-
connected PTSD, from 30 percent to 70 percent disabling under
Diagnostic Code 9411. At that time, the RO also granted the
appellant's claim of entitlement to a total disability rating
based on individual unemployability. The RO indicated that
entitlement to a total disability rating based on individual
unemployability was granted because the appellant was unable
to secure or follow a substantially gainful occupation as a
result of his service-connected PTSD. According to the RO,
the appellant had been employed until November 1, 1997, at
which time he was fired from his employment. Thus, the RO
indicated that the appellant's individual unemployability was
established from November 1, 1997. The RO further recognized
that the veteran had received a temporary total (100 percent)
rating under 38 C.F.R. § 4.29, effective from October 25,
1994, for his period of hospitalization from October 25, 1994
to January 19, 1995. Accordingly, the RO determined that the
appellant's 70 percent disabling rating was effective from
February 1, 1995.
On August 1998, the veteran submitted a notice of
disagreement in which he asserted that he was entitled to a
TDIU rating (i.e. a 100 percent rating) effective from
February 1, 1995. He reiterated this argument in June 1999
statements. He stated that entitlement to a TDIU rating
arose on February 1, 1995 because that is when a VA doctor
determined that he was unemployable.
In 2000 and 2001, the appellant's representative submitted
additional arguments which essentially reiterates those made
by the veteran.
II. Analysis
A. Veterans Claims Assistance Act
The Board observes that during the pendency of this appeal,
the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), was signed into law. 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp.
2001). This liberalizing law is applicable to this appeal.
See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To
implement the provisions of the law, the VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a)). The Act and its implementing regulations
essentially eliminate the concept of the well-grounded claim.
38 U.S.C.A. § 5107(a) (as amended); 66 Fed. Reg. 45,620 (to
be codified as amended at 38 C.F.R. § 3.102). They also
include an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim. 38 U.S.C.A. § 5103 (as amended); 66
Fed. Reg. 45,620 (to be codified at 38 C.F.R. § 3.159(b)).
In addition, they define the obligation of VA with respect to
its duty to assist the claimant in obtaining evidence.
38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,620 (to be codified at
38 C.F.R. § 3.159(c)).
The record reflects that the appellant and his representative
were notified in the July 1998 rating decision and the
February 1999 statement of the case of the law and
shortcomings of the appellant's claim for an earlier
effective date for a TDIU rating. Moreover, in VA letters
dated in March 1997 and April 1998, the RO apprised the
appellant and his representative of the information and
medical needed to support his claim. Although the Board's
decisions in July 2000, and in January 2002, have no
adjudicative authority due to the Court's orders to vacate,
in those decisions the Board informed the veteran of the
requirement to submit information and evidence showing that,
during the period prior to November 1997, he was unable to
secure or following a substantially gainful occupation as a
result of a service-connected disability. Indeed, it is
apparent from all the aforementioned documents that VA
identified to the veteran the information and evidence
necessary to support his claim, and then offered to assist
him by assuming sole responsibility for obtaining such
relevant evidence on the veteran's behalf. In this context,
the information and evidence that has been associated with
the claims file consists of the appellant's service medical
records, post-service medical records, including VA
examination reports, social and industrial surveys,
hospitalization reports and outpatient treatment reports,
information obtained from the appellant's employers, and
statements as well as arguments made by the appellant and his
representative in support of his claim. In addition, by a VA
letter date of August 2001, the appellant's representative
was provided an opportunity to present additional and
evidence in support of this appeal, which he submitted in
September 2001. The appellant has not identified any
additional sources of evidence. Thus, the appellant has
received notice and the assistance contemplated by law.
Adjudication of this appeal, without remand to the RO for
further consideration under the new law, poses no risk to the
veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394
(1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (to the same effect). Therefore, the
appellant's claim of entitlement to an earlier effective date
for a TDIU rating is ready for appellate review.
B. Earlier Effective Date
The governing regulations provide that a total disability
rating based on individual unemployability due to a service-
connected disability may be assigned, where the schedular
rating is less than total, when the disabled person is unable
to secure or follow a substantially gainful occupation as a
result of service-connected disability. 38 C.F.R. §§ 3.340,
3.341, 4.16. If the schedular rating is less than 100
percent, the issue of unemployability must be determined
without regard to the advancing age of the veteran.
38 C.F.R. §§ 3.341(a), 4.19. The regulations further provide
that if there is only one such disability, it must be rated
at 60 percent or more; and if there are two or more
disabilities, at least one disability must be rated at 40
percent or more, and sufficient additional disability must
bring the combined rating to 70 percent or more. 38 C.F.R. §
4.16(a).
In any event, it is the policy of the VA, however, that all
veterans who are unable to secure and follow a substantially
gainful occupation by reason of service connected disability
shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus,
if a veteran fails to meet the applicable percentage
standards enunciated in 38 C.F.R. § 4.16(a), an extra-
schedular rating is for consideration where the veteran is
unemployable due the to service-connected disability.
38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet.
App. 225 (1993). Therefore, the Board must evaluate whether
there are circumstances in the appellant's case, a part from
any non-service-connected condition and advancing age, which
would justify a total rating based on individual
unemployability due solely to the service-connected
conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993).
The Board notes that 38 C.F.R. § 4.16(c) was deleted from the
rating schedule effective November 7, 1996. Section 38
C.F.R. § 4.16(c) is for application in the appellant's case,
since his claim was filed before the regulatory change
occurred. See Karnas v. Derwinski, 1 Vet.App. 308 (1990).
Under 38 C.F.R. § 4.16(c), the assignment of a 100 percent
schedular rating is warranted in cases in which a veteran is
rated 70 percent disabled due to a psychiatric disorder, the
psychiatric disorder is the veteran's only compensable
disability, and the psychiatric disorder is found to preclude
him from securing or following a substantially gainful
occupation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994)
(discussing the applicability of 38 C.F.R. § 4.16(c)); See
also Swan v. Derwinski, 1 Vet. App. 20 (1990).
For a veteran to prevail on a claim based on individual
unemployability, it is necessary that the record reflects
some factor which takes the claimant's case outside the norm
of other such veterans. See 38 C.F.R. §§ 4.1, 4.15. The
sole fact that a veteran is unemployed or has difficulty
obtaining employment is not enough. A high rating is, in
itself, a recognition that the impairment makes it difficult
to obtain and keep employment. Therefore, the question is
whether the veteran is capable of performing the physical and
mental acts required by employment, not whether he or she can
find employment. See Van Hoose v. Brown, supra.
The method of determining the effective date of an increased
evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2),
and 38 C.F.R. § 3.400(o). The general rule with respect to
the effective date of an award of increased compensation is
that the effective date of such award "shall not be earlier
than the date of receipt of application therefor." 38
U.S.C.A. § 5110(a). This statutory provision is implemented
by regulation which provides that the effective date for an
award of increased compensation will be the date of receipt
of claim or the date entitlement arose, which ever is later.
38 C.F.R. § 3.400(o)(1). An exception to that rule applies,
however, under circumstances where evidence demonstrates that
a factually ascertainable increase in disability occurred
within the one-year period preceding the date of receipt of a
claim for increased compensation. In that regard, the law
provides that the effective date of the award "shall be the
earliest date as of which it is ascertainable that an
increase in disability had occurred, if application is
received within one year from such date, otherwise the date
of receipt of the claim." 38 U.S.C.A. § 5110(b)(2). See 38
C.F.R. § 3.400(o)(2). The phrase "otherwise, date of
receipt of claim" applies only if a factually ascertainable
increase in disability occurred more than one year prior to
filing the claim for an increased rating. Harper v. Brown,
10 Vet. App. 125 (1997). Moreover, the term "increase" as
used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an
increase to the next disability level. See Hazan v. Gober,
10 Vet. App. 511 (1997).
The date of receipt of a claim is the date on which a claim,
information, or evidence is received by the VA. 38 C.F.R.
§ 3.1(r). A claim is a formal or informal communication in
writing requesting a determination of entitlement or
evidencing a belief in entitlement, to a benefit. 38 C.F.R.
§§ 3.1(p); 3.155. The regulation which governs informal
claims, 38 C.F.R. § 3.155, provides as follows: (a) Any
communication or action, indicating an intent to apply for
one or more benefits under the laws administered by [VA],
from a claimant . . . may be considered an informal claim.
Such informal claim must identify the benefit sought. Id.
Further, under 38 C.F.R. § 3.157(b)(1), an informal claim may
consist of a VA report of examination or hospitalization.
Under this regulatory provision, the date of the VA
outpatient examination or hospital admission will be accepted
as the date of receipt of a claim if such a report relates to
examination or treatment of a disability for which service
connection has previously been established. Id.
In the instant case, the Board notes that in a July 1998
rating decision the RO found that the evidence demonstrated
an increase in symptomatology sufficient to warrant a rating
higher than 30 percent for the appellant's service-connected
PTSD. Based upon the clinical findings noted during VA
hospitalization in October 1994 through January 1995, and
findings documented in the most recent VA examination
conducted in April 1998, the RO determined that an increase
in impairment associated with the appellant's PTSD had been
shown, and this symptomatology was sufficient to warrant an
increase to 70 percent, and to warrant a total rating based
on unemployability. Moreover, in this case, the appellant
was in receipt of a temporary total rating under the
provisions of 38 C.F.R. § 4.29, based upon his period of
hospitalization from October 1994 to January 1995. In
pertinent part, this regulation provides for a temporary
total (100 percent) rating where the veteran has required
hospital treatment for a service-connected disability in a VA
or an approved hospital for a period in excess of 21 days.
38 C.F.R. § 4.29. Thus, the RO determined that the
appellant's 70 percent rating for PTSD was effective from
February 1, 1995, which was the date that the temporary total
rating under § 4.29 terminated. However, the RO assigned an
effective date of November 1, 1997, for the award to the
total rating for compensation based on individual
unemployability, on the basis that the evidence demonstrated
that November 1st was the date on which the veteran became
unemployable.
The Board observes that, as stated above, the veteran was
receiving a 70 percent disability rating for his service-
connected PTSD as of February 1, 1995. Therefore, as of
February 1, 1995, the appellant met the percentage
requirements for a total rating based upon individual
unemployability. 38 C.F.R. § 4.16. In this regard, the
veteran contends that the VA hospital reports reflect that at
the time of his hospital discharge in January 1995, that his
PTSD symptoms were of such severity as to render him
unemployable. Specifically, the veteran is contending that
an effective date of February 1, 1995, is warranted. Since
the veteran disagrees with the effective date assigned for
the total rating based on unemployability, the issue then
becomes at what point in time did the veteran become unable
to maintain substantial gainful employment. While VA
regulations do not specifically define "substantially
gainful employment", VA Adjudication Procedure Manual, M21-
1, Part VI, paragraph 7.09(a)(7), defines the term as that
which is ordinarily followed by the nondisabled to earn their
livelihood with earnings common to the particular occupation
in the community where the veteran resides. Also, in Faust
v. West, 13 Vet. App. 342 (2000), the Court defined
"substantially gainful employment" as an occupation that
provides an annual income that exceeds the poverty threshold
for one person, irrespective of the number of hours or days
that the veteran actually works and without regard to the
veteran's earned annual income.
The Board notes during a March 1997 VA social and industrial
survey, the veteran stated that from 1971 to 1979, he worked
as a bellboy and as a doorman. The veteran further stated
that from 1979 to 1993, he was self-employed as a contractor.
In addition, a VA Discharge Summary reflects that the veteran
was hospitalized from October 25, 1994 to January 19, 1995.
At that time, the veteran noted that he was employed part-
time and that his civilian occupation was that of a
carpenter. Moreover, the Board further notes that in the
veteran's application for individual unemployability, dated
in April 1998, he stated that he worked from January 1995 to
August 1995 at a Lincoln Mercury dealership. He also noted
that from August 1995 to April 1996, he worked at the Casey
Luna dealership, and from April 1996 to November 1997, he
worked at the Perfection Honda. Furthermore, the Board
observes that the evidence of record shows that the veteran
last worked in November 1997 and is currently unemployed.
While the record shows that that from January 1995 to
November 1997, the veteran was employed in some capacity, the
Board must now determine whether such employment is
considered substantially gainful employment. In this regard,
the Board must consider whether the veteran's employment from
January 1995 to November 1997 is considered marginal.
38 C.F.R. § 4.16(a) provides that marginal employment shall
not be considered substantially gainful employment. The
regulations further provide that marginal employment
generally shall be deemed to exist when a veteran's earned
annual income does not exceed the amount established by the
U.S. Department of Commerce, Bureau of the Census, as the
poverty threshold for one person. Marginal employment may
also be held to exist, on a facts found basis (includes but
is not limited to employment in a protected environment such
as family business or sheltered workshop), when earned annual
income exceeds the poverty threshold. Consideration shall be
given in all claims to the nature of the employment and the
reason for termination.
Based on a review of the record, the Board concludes that the
veteran's employment from January 1995 to November 1997 is
not considered marginal as defined by VA regulations. In
this regard, the Board notes that a March 1997 VA social and
industrial survey reveals that the veteran reported working
as a car salesman. He stated that he worked 40 hours or more
a week and averaged approximately $800 a month. The Board
observes that his monthly salary equates to an annual salary
of approximately $9600 a year. An employment report from
Perfection Honda dated in April 1998 indicates that the
veteran worked there from July 1996 to November 1997 and that
over the last 12 months he had income of $17, 230 for the
year 1997. In April 1998, the veteran reported that he
worked as a car salesman from January 1995 to November 1997
and that his highest gross earnings per month was listed as
$1750, $1900, and $3750. He reported that in 1996 he earned
$45,000 a year. The poverty threshold for the year 1995 was
$7763, for 1996 it was $7995, and for 1997 it was $8183. See
VA Adjudication Manual, M21-1, Part VI, Chapter 7, paragraph
7.09(8)(a), Addendum A - Poverty Thresholds. The figures
reported by the veteran and his employer fails to show that
at any time between January 1995 and November 1997 that his
income was below the poverty threshold. Thus, the veteran's
income cannot serve as the basis for a finding that the
veteran was engaged in marginal employment.
Additionally, the facts do not show that his position as a
car salesman from January 1995 to November 1997 would be
considered marginal employment. In his position as a car
salesman there is no indication that he required any special
consideration. The position itself required that he be able
to communicate with others and that he have a certain degree
of social skills. It was not that type of position in which
he could operate in a sheltered or protected type of
environment. The Board, therefore finds that the facts in
the instant case, do not support a finding that the veteran
had marginal employment from January 1995 to November 1997.
The Board notes that a VA Discharge Summary in January 1995
reflect that the veteran was "deemed unemployable". The
Board observes, however, that the evidence of record at that
time showed that the appellant was working part-time as a
carpenter. Additionally, the veteran reported in April 1998
that he worked from 1995 to 1997. Moreover, subsequent to
the January 1995 VA hospitalization discharge summary, the VA
examiner, in March 1997, specifically concluded that the
appellant's PTSD did not prevent him from working, as
evidenced by the fact that he was currently working at a job
and was able to support himself by that employment. The
examiner's conclusion was based on a comprehensive
examination of the appellant, and included a review of the
claims folder and other medical records. As a result, the
Board finds that such evidence is probative and supports a
finding that the veteran was employable. The VA examiner's
March 1997 opinion to the effect that the veteran was
employable is supported by the veteran's April 1998
application for a TDIU rating. In that application, the
veteran reported that he worked as a car salesman from 1995
to 1997, and he indicated that he earned an income which was
above the poverty threshold.
The Board concludes that in light of the foregoing, the
veteran was engaged in substantial gainful employment from
January 1995 to November 1997. In this regard, the evidence
shows that he earned an annual income which was in excess of
the poverty threshold for one person during this period of
time. See, Faust v. West, 13 Vet. App. 342 (2000).
The Board recognizes the veteran's contention that when he
was granted a 70 percent rating for his PTSD, effective from
February 1, 1995, he actually deserved a 100 percent rating
under the deleted provisions of 38 C.F.R. § 4.16(c). He
argues that his PTSD symptoms at that time precluded him from
securing or following a substantially gainful occupation. As
mentioned above, the Board finds that the veteran was in fact
engaged in substantially gainful employment from January 1995
to November 1997.
In sum, the Board notes that the evidence of record
demonstrates that the veteran worked from January 1995 to
November 1997, that his annual income exceeded the poverty
level and that the nature of his employment does not involve
any situation which would categorize his employment as
marginal. The evidence of record further shows that the
veteran has not worked since November 1, 1997, and that he is
currently unemployed. Thus, the Board finds that the date of
November 1, 1997, is the earliest date at which it is
factually ascertainable that the appellant was unable to
secure or follow a substantially gainful occupation.
38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 4.16(a) and (c).
Therefore, the Board determines that the appellant is not
entitled to an effective date earlier than November 1, 1997,
for the award of a total disability rating for compensation
purposes based on individual unemployability due to the
service-connected PTSD. Accordingly, the appeal is denied.
ORDER
Entitlement to an effective date prior to November 1, 1997,
for an award of a total rating based upon individual
unemployability due to a service-connected disability is
denied.
Deborah W. Singleton
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.